By: Jonnette Watson Hamilton

PDF Version: Three Leaves to Appeal the Claimed Jurisdiction of Court of Queen’s Bench Over Vexatious Litigants

Cases Considered: Lymer (Re), 2018 ABCA 368 (CanLII); Jonsson v Lymer, 2019 ABCA 113 (CanLII); Makis v Alberta Health Services, 2019 ABCA 23 (CanLII); Vuong Van Tai Holding Inc v Alberta (Minister of Justice and Solicitor General), 2019 ABCA 165 (CanLII); Unrau v National Dental Examining Board, 2019 ABQB 283 (CanLII)

The Alberta Court of Appeal has granted leave to appeal three different vexatious litigant orders made by the Court of Queen’s Bench in Edmonton that restricted individual litigant’s access to the courts and, in one case, to administrative tribunals. Hopefully the three appeals will be heard either together or on the same day by the same panel, as suggested by Justice Bielby when she granted leave to appeal in Vuong Van Tai Holding Inc v Alberta (Minister of Justice and Solicitor General), 2019 ABCA 165 (CanLII) (at para 21). The National Self-Represented Litigants Project (NSRLP) has been granted leave to intervene in one of the three appeals – Jonsson v Lymer, 2019 ABCA 113 (CanLII) – bringing its wider perspective on self-represented litigants and its national research on access to justice into the courtroom. The Alberta Minister of Justice and Solicitor General, who was represented on the leave to appeal application in Vuong, has been invited to participate as a party in that appeal. The arguments and outcomes of these three appeals should be very interesting on a number of issues of civil procedure, access to justice and procedural justice, but primarily on the question of the scope of the inherent jurisdiction of the Court of Queen’s Bench. In this post, I will look at what is at stake in these three appeals. Continue reading →

By: Jonnette Watson Hamilton

PDF Version: Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

Case Commented On: Makis v Alberta Health Services, 2018 ABQB 976

In many written decisions rendered over the past two years, some judges of the Court of Queen’s Bench of Alberta have been rather disdainful of the vexatious litigant procedures added to the Judicature Act, RSA 2000, c J-2 in 2007, referring to them, for example, as “obsolete and inferior” (Gagnon v Shoppers Drug Mart, 2018 ABQB 888 at para 14). Although the Judicature Act procedures continue to be used in rare cases (e.g. HRMT v SNS, 2018 ABQB 843 at para 102), the Court usually makes it clear that it prefers its own two-step “modern” process – introduced in Hok v Alberta, 2016 ABQB 651 – which they justify as an exercise of a superior court’s inherent jurisdiction. The use of their inherent jurisdiction is said to provide “a more robust, functional, and efficient response to control of problematic litigants” (Templanza v Ford, 2018 ABQB 168 at para 103; Hill v Bundon, 2018 ABQB 506 at para 53). The Judicature Act procedure requires “persistent” bad behavior by a litigant before that litigant’s access to the courts can be restricted (s 23(2)), usually by requiring the litigant to obtain the court’s permission before starting a new court action. The Court of Queen’s Bench does not want to wait for persistent vexatious conduct (Templanza at para 101; 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 49-50). The legislated procedure also requires notice to the Minister of Justice and Solicitor General (s 23.1(1)), who has a right to appear and be heard in person (s. 23.1(3)), a requirement that suggests how seriously our elected representatives saw restrictions on court access when they added the vexatious litigant procedures to the Act in 2007. The court-fashioned process does not usually require notice to anyone except the person about to be found to be a vexatious litigant, and it has become a written-submissions-only process – no one has the right to appear and be heard in person. The usual restrictions on court access are now characterized as a “very modest imposition” (Knutson (Re), 2018 ABQB 858 at para 42). As this brief summary suggests, the changes made to this area of the law over the past two years have been fairly dramatic. But the Court of Queens’ Bench has now pushed the envelope, extending their inherent jurisdiction even further. In Makis v Alberta Health Services, their inherent jurisdiction is used to control access by a litigant found to be vexatious to non-judicial bodies, i.e. administrative tribunals and other statutory decision-makers.

Continue reading →